IN THE CASE OF:	

		BOARD DATE:	30 March 2010  

		DOCKET NUMBER:  AR20090013359 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of the records of her spouse, a deceased former service member (FSM), to show that he elected to participate in the Survivor Benefit Plan (SBP) with her designated as beneficiary.

2.  The applicant states that at the time her spouse completed his paper work they had a common law marriage.  She states that her husband told her that if anything ever happened to him she should apply for benefits.  She states that she believes that her spouse forgot to change his election form.

3.  The applicant provides a copy of their Common Law Marriage declaration, a copy of her spouse’s death certificate, a copy of an August 1994 DD Form 1172 (Application for Uniformed Services Identification Card/DEERS Enrollment Form) and a copy of his DD Form 1883 (Survivor Benefit Plan Election Certificate).

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the FSM was a member of the Texas Army National Guard when he received his Notification of Eligibility for Retired Pay at Age 60 memorandum.  The notification was dated 18 August 1993.  On
7 September 1993 the FSM was discharged and transferred to the Retired Reserve.  

2.  On 1 October 1993 the FSM executed a DD Form 1883 indicating that he was not married but that he had dependent children.  He elected SBP coverage for “children only” based on the full amount of his retired pay and elected “Option C” (immediate coverage).  The FSM indicated his son, born on 10 September 1989, was the beneficiary for the SBP annuity.

3.  On 17 March 1994 the FSM executed a Declaration and Registration of Informal Marriage with the Bell County Clerk in Bell County, TX.  The declaration noted the FSM and the applicant affirmed that they were married to each other “by virtue of the following facts:  on or about April 01, 1984, we agreed to be married, and after that date we lived together as husband and wife and in this State we represented to others that we were married.”

4.  Under Section 2.401 of the Texas Family Code, an informal marriage (Texas calls it an “informal marriage” rather than a common-law marriage) can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a three-prong test showing evidence of:

	a.  an agreement to be married

   b.  cohabitation in Texas

   c.  representation to others that the parties are married.

5.  On 7 August 1994 the FSM completed a DD Form 1172 applying for a military identification card for the applicant.  The FSM indicated in block 56 (Date of Marriage) that he and the applicant married on 1 April 1984, although eligibility for military benefits (including medical care) commenced on 18 October 1993.

6.  On 3 May 2009 the FSM died.  He was 55 years old at the time.

7.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If the member dies before reaching age 60, premiums are deducted from the annuity.

8.  Title 10, U. S. Code, section 1448a(5) states that a person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

9.  A common-law marriage may be recognized for SBP annuity purposes if the marriage is recognized in the State in which the retiree and spouse resided.  Documentation must be provided indicating the state in which the common-law marriage existed.

10.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

11.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity of this Open Season was given in Army Echoes.  Army Echoes informed retirees that any category could be enrolled for the first time and that the six options available included spouse coverage and former spouse coverage.

12.  The SBP provides that the "Child(ren) Only " option applies to children under 18 years of age, unless full time student and unmarried, then under 22 years of age.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board indicates the FSM annotated on his October 1993 DD Form 1883 that he was not married at the time he elected to provide an annuity to his dependent son.  Approximately 5 months later the FSM and the applicant executed a Declaration and Registration of Informal Marriage although on the FSM’s application for an Identification Card for the applicant, he indicated the date of marriage was 1 April 1984.

2.  Although the FSM indicated on the application for an Identification Card that he and the applicant were married on 1 April 1984, the fact remains that when he executed his DD Form 1883, he indicated he was not married.  Hence the Declaration and Registration of Informal Marriage, dated 17 March 1994, is accepted as the date the FSM “married” as it relates to eligibility for RCSBP elections under Title 10, U.S. Code.  Further, even if married, the FSM did not elect spouse coverage and was not required to do.  If the marriage occurred subsequent to October 1993, the FSM still had to elect spousal SBP within one year of his marriage to the applicant.  There is no evidence, and the applicant has not provided any, that the FSM executed such an election.

3.  Unfortunately, in the absence of evidence that the FSM did in fact execute an election within the timeframe provided for by Title 10, U.S. Code, there is no basis for the Board to correct the FSM’s record to show such an election.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090013359



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013359



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1